It’s also not surprising in the least to hear the talking point going out – like on the appropriately named Talking Points Memo blog linked above – that this demonstrates conservative hypocrisy with regards to judicial activism. After all, don’t conservatives bemoan activist judges who overturn the will of democratic legislatures? This would be a fair point if it actually captured the gist of conservative sentiment on judicial matters.

Happily for us all I wrote a post some two and a half years back detailing why I didn’t like the term judicial activism. I’ll re-post most of it here.

The problem with the term is that it connotes judicial behavior that trumps the majority will. The problem with this line of thinking is that when the majority, or a majority of the people’s representatives, acts in an unconstitutional manner, the Court – be it a state, or Federal one – ought to overrule the majority.

Let me use two cases to illustrate what I am talking about. In 1942, the Court rendered a unanimous decision in the case of Wickard v. Filburn. The 9-0 decision upheld the federal government’s ability to regulate how much wheat a farmer grew even if the wheat was consumed for purely personal consumption. The Court held that the minimal consumption had an indirect effect upon interstate commerce, and thus federal regulation was permissable. Remember, this absurd decision upheld governmental action.

In 1995, in the case of US v Lopez, the Court, by a 5-4 vote, ruled that the federal ban on firearms in school zones was unconstitutional because Congress had no jurisdiction under the commerce clause to make such a ban. In so acting, the Court acted to restrict the broad construction of the commerce clause for the first time in decades.

The first decision involved an expansive reading of the Constitution, while the latter was an originalist-based decision that was a far more reasonable interpretation of the Constitution. The former upheld an act of Congress, and the latter struck one down. Which one was “activist?”

I went on to note that we need to come up with a better term than “judicial activism” (Jay’s “judicial imperialism” has a nice ring). Activism might work as an effective short-hand term to apply to bad legal decision-making, but it’s inapt for the reasons I’ve outlined above.

It’s fitting in this case that the examples I used relate to the commerce clause, because this is what the individual health care insurance mandate was based upon. Wickard v. Filburn is one of the most unheralded Supreme Court cases of all-time, at least to most people who have been fortunate enough to have never stepped foot in a law school, but it is probably one of the most tyrannical and ridiculous rulings in the history of this country. It opened the floodgates to permit Congress to regulate anything and everything – and again, this was a case that upheld Congressional action. Yesterday’s decision struck down part of a piece of legislation. Well, based on a proper understanding of the U.S. Constitution, it is the latter decision that is eminently more justifiable.

This is why I am uncomfortable with some of the terms that get bandied about to describe the judiciary. I take a back seat to no one in decrying the abysmal state of the judiciary, especially when historically ignorant and smug individuals like Stephen Breyer are sitting on the Supreme Court. Yet there is a role for judicial review, and blatantly unconstitutional legislation is made no more legitimate simply because it passed by Congress rather than five individuals in robes.

Yesterday’s decision was a victory for originalists. Even if you agree with the general policy, it strains credulity to state that the individual mandate is even remotely justified under the commerce clause. That it took a Judge – and will ultimately take five Supreme Court Justices – to overturn this unconstitutional policy is a sad indictment on Congress, but we shouldn’t feel bad in cheering the only constitutionally supported outcome.

6 Responses to Activism! They Cried

Justice Thomas will buy it but it’s not clear that the others will. Justice Scalia concurred in Gonzales v. Raich which allowed the federal government to regulate non-economic intra-state activity if it frustrates the regulation of interstate commerce.

Great analysis Paul! How about judicial tyranny as a name replacement? I would call Judge Hanson’s ruling an act of Judicial constitutionalism which abides by the will of the people. Justice Kennedy is a centrist so it will be a close call, but ultimately the ruling will depend on the arguments by both sides.

I don’t see Roberts getting five votes to “overturn the will of the people”. I can imagine one of those six-opinions in-part-concurring decisions that establishes no precedent and manages to cut a few paragraphs out of the legislation.

Does the other side have a term for their approach, other than “living Constitution”?

I can see anything from 5-4 striking down the individual mandate to 8-1 upholding it. Attention has focused on Kennedy as the swing vote, but it’s easy to see Roberts, Alito, or even Scalia defecting.

What killed the government in Lopez was that the government was asked to give an example of a law that would exceed Congress’ authority under their theory and weren’t able to do it. My understanding is that the government has so far been unable to give such an example in this case as well.